Non-Reportable

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

Civil Appeal No.4452 of 2019

Chandra Prakash Budakoti .... Appellant(s)

Versus

Union of India & Ors.                                               …. Respondent (s)

J U D G M E N T

L. NAGESWARA RAO, J.

1. This  appeal  is  directed  against  the  judgment  dated

05.04.2019 passed by the National Green Tribunal, Principal

Bench,  New  Delhi  (hereinafter,  ‘the  Tribunal’)  in  Original

Application No.626 of 2016.   

2. The Appellant who is a Journalist and Editor of Jan Lok

Kesari  which  is  a  Hindi  Newspaper  having  circulation  in

Uttarakhand,  filed the application in  public  interest  as he

was concerned about the environmental damage caused by

Respondent No.4 to 8.  He alleged in the O.A. before the

Tribunal  that  there  was  a  large-scale  felling  of  trees  in

private  forests  located  at  Patti  Dhamnsu,  Narendranagar,

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District  Tehri  Garhwal  in  Khasra  No.512  and  514.    The

Appellant  also  complained  of  blasting  activities  being

resorted to by Respondent No.4 to 8 in the fragile Himalayan

region.   The Appellant averred in the O.A. that no action

was taken by the District authorities to whom he complained

about the violation of the Forest (Conservation) Act, 1980

(hereinafter, ‘the Act’).  He also referred to Khasra No.605 in

which there were fully grown trees which were being felled.

On the basis of the above allegations, the Appellant sought

a  direction  to  the State  of  Uttarakhand and the Principal

Chief Conservator of Forests, Uttarakhand to stop the tree

felling and usage of forest land for non-forest purposes in

Khasra No.512, 514 and 605 in Narendranagar District, Tehri

Garwal.   He further sought a direction to Respondent No.4

to  8  therein  to  stop  construction.   Later,  the  Appellant

impleaded Respondents 7 to 9 in the O.A.   The Tribunal on

an application dated 11.04.2017 directed an inspection to

be done by the Forest Survey of India.  The said inspection

was  done  on  01.05.2017  and  a  report  was  filed  in  the

Tribunal  which  showed  progressive  degradation  of  forest

cover in Khasra No.605.

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3. The  State  of  Uttarakhand  filed  a  counter  affidavit

before the Tribunal in which it was stated that a Hotel/Villa is

being  constructed  by  the  Mahananda  Spa  and  Resorts

Private Limited, since 2010-2011 in Khasra No.512, 513 and

605.  According to the State Government, the land falling in

Khasra No.512, 513 and 605 is neither a reserved forest nor

a  forest  in  the  record  of  the  Forest  Department.   It  was

further  stated  in  the  said  counter  affidavit  that  Khasra

No.512  and  513  were  recorded  as  private  forests  in  the

revenue record and Khasra No.605 as barren (banjar) land.

The  State  Government  further  submitted  that  the project

proponent was directed to stop construction in view of the

complaints made by the residents of Kumar Khera and Daur

to Sub-District  Collector,  Narendranagar.   As certain trees

were found to be damaged during the construction, a fine

was imposed under Section 4/10 of  the U.P.  Protection of

Trees in Rural and Hills Areas Act, 1976.

4. By an order  dated 19.12.2018,  the Tribunal  directed

the Regional office of the Ministry of Environment & Forest

at Dehradun to visit the site and submit a status report.  A

Committee  comprising  Ms.  Komal  Preet,  Conservator  of

Forest and Dr. S.C. Katiyar, Scientist E inspected the site on

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05.01.2019.   During  the  inspection,  the  Range  Officer

Narendranagar forest division and Kanungo from the office

of  Sub  Divisional  Magistrate,  Narendranagar  were  also

present.   The said inspection report dated 17.01.2019 filed

before the Tribunal in which the following observations were

made:

Observation during site visit:  

1. Status of Khasra No.512, 513 and 605 in revenue  

records and as per site inspection:

Sl.  No.

Khasr a No.

Ownership as  per revenue  records

Status of  construction  

Vegetatio n cover  

01 512 Private land Villas constructed Sparse 02 513 Private land Villas constructed Sparse 03 605 Private and Partly under villas

already constructed  and partly  under Westin  Resort under construction

Sparse  

2. As per the revenue records, the ownership of Khasra

No.512, 513 and 605 are ‘nap’ or private land.

3. The revenue records  have not  been updated since

1938 and the status of land for khasra no.512 and 513 is

‘niji van’ or private forest while for khasra no.605 is ‘banjar’

or barren.  

4. The land was not considered as deemed forest by the

forest department in report filed in the Godavarman case.  

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5. At present, khasra no.512 and 513 and part of 605

are  having  independent  villas  which  are  devoid  of  any

natural vegetation.  

6. Owner  of  the  project  denied  having  any  rights  in

khasra No.514.  

7. On a portion of khasra no.605, resort in the name of

Westin Resort is being constructed.  During the site visit the

construction was seen going on at the resort.  

8. There is no evidence of blasting and representatives

of both the revenue and forest department denied the same.

It was also informed that the land is devoid of hard rocks

and  hence  blasting  is  not  required  for  any  construction

activity.

9. The  construction  site  adjoins  civil  land  at  its  back

side  which  was  seen  having  natural  vegetation  akin  to

miscellaneous  degraded  forest  having  mostly  shrubs  and

few trees.  

10. There was no sign of any fresh tree felling at the site.

As  per  the  forest  department,  illegal  felling  was  reported

and  booked  under  U.P.  Tree  Protection  in  Rural  and  Hilly

Areas Act, 1976 of the state during the year 2011-12 for 34

no. of trees and year 2015-16 for 16 no. of trees (annexure

II).  

11. The land is already broken and construction going-on

over major part of the khasra 605 and adjoining land also

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bears only degraded forest land with miscellaneous species,

and  has  also  not  been  marked  as  deemed forest  by  the

forest  department,  hence in  its  present  state  it  does  not

qualify as deemed forest on the basis of the vegetation on

khasra no.605.  

12. Since  khasra  no.605  was  recorded  as  ‘banjar’  or

barren in the year 1938 in revenue records, which have not

been updated, hence continue to be reflected as banjar.  As

per  the  directions  of  the  Hon’ble  Supreme  Court  in  the

matter of T.N. Godavarman, Forest Conservation Act, 1980

would be applicable to all such lands recorded as forest in

revenue records irrespective of the ownership, hence land

under khasra no.605 would not attract Forest (Conservation)

Act, 1980. (Annexure II)

13. Khasra  no.512  and  513  have  been  recorded  as

private forest in the revenue records, hence would attract

the provisions of Forest (Conservation) Act, 1980 over which

construction  has  already  been  completed  in  the  form  of

villas. (Annexure II).      

5. After a careful consideration of the report, the Tribunal

passed the following order: -

(i) We hold that Khasra No. 512 and 514 are ‘Private forest’

land, as recorded in the revenue records and Provisions of

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Forest  (Conservation)  Act,  1980  are  applicable.  We,

therefore,  direct  the  Forest  Department  and  MoEF  to

initiate proceedings for violation of Forest (Conservation)

Act,  1980  in  Khasra  No.  512  &  513  for  non-forestry

activities  by  way  of  raising  constructions,  if  such

constructions  had  been  undertaken  without  obtaining

prior approval of MoEF. It has been stated that there are

independent villas in Khasra No. 512 & 513. We also direct

the Forest Department to conduct enquiry to find out the

persons/officials responsible for the violation, if any and to

proceed  against  them  in  accordance  with  law.  (ii)The

observations of FSI with regard to Khasra No. 605 are not

conclusive and cannot be relied upon. The area of Khasra

No.  605 in  the  report  submitted  by  FSI  is  given  as  11

18.02 ha whereas as per Revenue record it is 10.394 ha.

We cannot arrive at any conclusion as to which part of the

Khasra No. 605 had been degraded as the area of Khasra

No. as given in FSI report is significantly more than the

area recorded in the revenue records. In the absence of

any  report  on  deemed  forest  filed  by  the  Forest

Department, we would go by the site inspection report of

the Regional office which is based on the revenue records

and  the  existing  character  of  the  land.  We,  therefore,

accept the observations given in the site inspection report

of the Regional Office of the MoEF wherein it  has been

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stated  that  Khasra  No.  605  is  non-forest  land  and

Provisions of Forest (Conservation) Act, 1980 will  not be

applicable.

6.  Aggrieved  by  the  judgment  of  the  Tribunal,  the

Appellant  has  approached  this  Court  by  filing  the  above

appeal.   

7. Before we proceed further it is relevant to mention that

the  direction  issued  by  the  Tribunal  in  respect  of  Khasra

No.512  and  514  has  not  been  challenged  by  the

Respondents.   The grievance of the Appellant in respect of

Khasra  No.512  and  514  is  that  the  authorities  have  not

implemented the directions.   

8. The main controversy in the above appeal pertains to

Khasra  No.605.   Mr.  P.S.  Patwalia  learned  Senior  Counsel

appearing for the Appellant submitted that Khasra No.605 is

a  deemed  forest  and  would  fall  within  the  expression  of

forest, attracting the provisions of the Forest (Conservation)

Act.   He  relied  upon  a  judgment  in  T.N.  Godavarman

Thirumulpad v. Union of India1 to submit that the words

‘forest’  should  be  understood  according  to  its  dictionary

meaning.  He relied upon Google images from 2007 to 2014

1 (1997) 2 SCC 267

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which  would  show  that  the  area  which  was  densely

populated with trees has gradually undergone a change.   

9. He submitted that Oak and Kukat trees were cut and

construction  was  commenced  by  Respondent  No.9  i.e.

Mahananda  Spa  and  Resorts  Pvt.  Ltd.  without  obtaining

clearance under the Forest (Conservation) Act.  He referred

to the reports submitted by the Forest Survey of India and

the joint inspection report of the forest authorities in support

of  his  submission  that  there  has  been  a  progressive

reduction  in  the  forest  area  in  Khasra  No.605.   He  also

placed  reliance  on  the  judgements  of  this  Court  in  M.C.

Mehta (Kant Enclave matters) v. Union of India2 and

Kerala State Coastal Zone Management Authority v.

State of Kerala3 to argue that any construction carried out

without requisite permissions is liable to be demolished.   

10. Mr. C. A. Sundaram, learned Senior Counsel appearing

for Respondent No.9 submitted that the land of Respondent

No.9 in Khasra No.605/1 is recorded as barren (banjar) land

in the revenue records.   He referred to the revenue records

to contend that the land in Khasra No.605 is neither a forest

land nor in the nature of a forest.  Initially, according to him,

2 (2018) 18 SCC 397 3 (2019) 7 SCC 248

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Mahananda Spa and Resorts Limited was to be constructed

in 5702.20 sq. meters for which a sanctioned building plan

was  granted.   According  to  the  notification  dated

14.09.2006,  environment clearance is  required only if  the

built-up area of a project is more than 20,000 sq. meters.

As  it  was  decided  to  increase  the  built-up  area  from

13983.67 sq. meters to 32,791 sq. meter, a fresh building

plan was submitted for approval.  Mr. Sundaram contended

that the entire shareholding of the erstwhile promoters of

the Respondent No.9 was sold to Mankind Pharmaceuticals

Limited company.  Thereafter, Respondent No.9 applied for

grant of environment clearance on 01.02.2016 and Consent

to Establish  from the Uttarakhand Environment Protection

and Pollution Control Board.           

11. Mr.  Sundaram  stated  that  the  State  Level

Environment  Impact  Assessment  Authority  conducted  a

site  inspection  on  21.02.2016  pursuant  to  which  the

environment  clearance  was  granted  on  03.03.2016

permitting construction of the total built-up area of 32,686

sq. meters.  He contended that there was no felling of any

trees, as alleged by the Appellant.  The submission of Mr.

Sundaram that the construction taken up by Respondent

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No.9 was after obtaining all the necessary sanctions and

approvals which were not subject matter of challenge in

any forum.  

12. The Appellant placed heavy reliance on the report of

the Forest Survey of India which conducted an inspection

on 01.05.2017.  It is no doubt true that it was mentioned

in the report that there is a gradual degradation of forest

in  Khasra  No.605.   The Committee  proceeded with  the

inspection on the basis that Khasra No.605 is a forest on

the ground that  all  lands  with  the  tree  canopy density

between 10 % to 40 % shall  be treated as open forest.

The  Committee  made  no  reference  to  the  revenue

records.  The Committee further proceeded on the ground

that the total area of Khasra No.605 is 18.02 hectares to

conclude that there is a progressive degradation due to

construction of golf courts and other buildings in the area.

The Tribunal  rightly refused to accept the report  of  the

Forest  Survey  of  India  as  according  to  the  revenue

records, the land in Khasra No.605 is only 10.39 hectares.

The  Tribunal  observed  that  it  is  difficult  to  arrive  at  a

conclusion as to which part of Khasra No.605 has been

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degraded as the report of FSI refers to Khasra No.605 to

be more than the area recorded in the revenue records.   

13. The Appellant filed M.A. No.1672 of 2018 in O.A. 626

of 2016 seeking a direction for a site inspection in view of

fact  that  Respondent  No.9  is  continuing  with  the

construction  in  the  forest  area.    By  an  order  dated

19.12.2018,  the Tribunal  directed  the Regional  office of

Ministry  of  Environment  and  Forest,  Climate  Change,

Dehradun to conduct an inspection. After conducting an

inspection, a report was submitted on 07.01.2019.  The

clear findings recorded in the report are that the revenue

records show that Khasra No.605 is banjar or barren land.

In  NOIDA  Memorial  Complex  Near  Okhla  Bird

Sanctuary, In Re v. 4, this Court held that due weight has

to  be  given  to  revenue  records,  especially  those

pertaining to a period when the dispute regarding the land

being a forest land did not exist.  In the instant case, the

revenue records relied upon by the Respondent No.9 are

very  old  when  nobody  could  have  imagined  about  the

project.   

4 (2011) 1 SCC 744

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14. The observation in the report dated 07.01.2019 is to

the  effect  that  the  land  in  Khasra  No.605  was  not

considered as a deemed forest by the Forest Department

in  the  report  filed  in  Godavarman’s  case.  There  is  no

evidence of blasting operations.  There is also no sign of

any fresh felling of trees and finally it was concluded that

the  land  in  Khasra  No.605  cannot  qualify  as  deemed

forest.  There is a reference in the report to the judgment

of this Court in Godavarman’s case wherein it was held

that the Forest Conservation Act would be applicable to all

lands  recorded  as  forest  in  the  revenue  records.   The

provisions  of  the  Forest  Conservation  Act  are  not

applicable to Khasra No.605.  We are in agreement with

the findings recorded by the Tribunal that the land falling

in  Khasra  No.605  is  banjar  or  barren  land  and  the

provisions of the Forest Conservation Act is not applicable.

15. In so far as Khasra No.512 and 514 are concerned,

the Forest Department, State of Uttarakhand, Ministry of

Environment and Forest have been remiss in not initiating

the proceedings as directed by the Tribunal.  The inquiry

as directed by the Tribunal  shall  be completed within a

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period of three months from today and further action be

taken immediately thereafter.  

16. For  the  aforementioned  reasons,  we  uphold  the

judgment of the Tribunal and dismiss the appeal.   

             ..…................................J                                   [L. NAGESWARA RAO]

                                            ..…................................J                                       [HEMANT GUPTA]

New Delhi, October  24, 2019

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